Robin Baptiste v. Bethlehem Landfill Company

R
                                           PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 ______________

                      No. 19-1692

                    ______________

      ROBIN BAPTISTE; DEXTER BAPTISTE,
On Behalf of Themselves and All Others Similarly Situated,
                                            Appellants
                           v.

        BETHLEHEM LANDFILL COMPANY,
    A Delaware Corporation doing business as IESI PA
              BETHLEHEM LANDFILL
                   ______________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
             (D.C. Civil No. 5-18-cv-02691)
       District Judge: Honorable Chad F. Kenney
                    ______________

                Argued December 9, 2019
                    ______________

Before: RESTREPO, ROTH and FISHER, Circuit Judges.

                  (Filed: July 13, 2020)
Nicholas A. Coulson [ARGUED]
Steven D. Liddle
Liddle & Dubin
975 East Jefferson Avenue
Detroit, MI 48207

Philip J. Cohen
Kevin S. Riechelson
Kamensky Cohen & Riechelson
194 South Broad Street
Trenton, NJ 08608

      Counsel for Appellants

Matthew J. Owens [ARGUED]
Miner Barnhill & Galland
325 North LaSalle Street Suite 350
Chicago, IL 60654

Sarah E. Siskind
Miner Barnhill & Galland
44 East Mifflin Street Suite 803
Madison, WI 53703

      Counsel for Amici Public Interest Law Center and
      Philly Thrive in Support of Appellants

Eric L. Klein [ARGUED]
Beveridge & Diamond
155 Federal Street Suite 1600
Boston, MA 02110




                                2
Robert M. Donchez
Robert A. Freedberg
Florio Perrucci Steinhardt & Cappelli
60 West Broad Street Suite 102
Bethlehem, PA 18018

Michael G. Murphy
John H. Paul
Nicole B. Weinstein
Beveridge & Diamond
477 Madison Avenue 15th Floor
New York, NY 10022

Roy D. Prather, III
Beveridge & Diamond
201 North Charles Street Suite 2210
Baltimore, MD 21201

James B. Slaughter
Beveridge & Diamond
1350 I Street, NW Suite 700
Washington, DC 20005

      Counsel for Appellee

John F. Stoviak
Saul Ewing Arnstein & Lehr
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102




                              3
       Counsel for Amicus National Waste & Recycling
       Association in Support of Appellee
Robert L. Byer
Duane Morris
600 Grant Street Suite 5010
Pittsburgh, PA 15219

John E. Moriarty
Duane Morris
30 South 17th Street
United Plaza
Philadelphia, PA 19103

       Counsel for Amici Chamber of Commerce of the
       United States of America, Pennsylvania Chamber of
       Business & Industry, and Pennsylvania Farm Bureau
       in Support of Appellee

                       ______________

                OPINION OF THE COURT
                    ______________

RESTREPO, Circuit Judge.

        Robin and Dexter Baptiste brought an action against the
Bethlehem Landfill Company on behalf of a class of
homeowner-occupants and renters claiming interference with
the use and enjoyment of their homes and loss in property value
caused by noxious odors and other air contaminants emanating
from the Bethlehem landfill. They brought these claims under
three state-law tort theories: public nuisance, private nuisance,
and negligence.




                               4
        The U.S. District Court for the Eastern District of
Pennsylvania granted the company’s motion to dismiss the
complaint. The District Court held that too many residents
were similarly affected to sustain a private claim for public
nuisance, that the odors affected too many people and the
landfill was too far away from them to constitute a private
nuisance, and that the plaintiffs had failed to identify a duty of
care to maintain a negligence claim. We disagree, and
therefore, we will reverse and remand.1

                RELEVANT BACKGROUND

                     A. Legal Framework

        Landfill operations in Pennsylvania are governed in part
by the Commonwealth’s Solid Waste Management Act
(SWMA). The SWMA was enacted for several purposes
including to “protect the public health, safety and welfare from
the short and long term dangers of transportation, processing,
treatment, storage, and disposal of all wastes,” and to “provide
a flexible and effective means to implement and enforce the
provisions of this act.” 35 P.S. § 6018.102(4)-(5). The SWMA
empowers the Pennsylvania Department of Environmental
Protection (PADEP or the “department”) to enforce the
statute’s provisions. 35 P.S. § 6018.104(10)-(11); 35 P.S.
§ 6018.103; 71 P.S. § 1340.501.



       1
          The plaintiffs brought this class action pursuant to
Federal Rule of Civil Procedure 23. The District Court had
jurisdiction under the Class Action Fairness Act. 28 U.S.C.
§ 1332(d)(2)(A). We have jurisdiction under 28 U.S.C.
§ 1291.




                                5
       One of the SMWA’s provisions states that “[a]ny
violation of any provision of this act, any rule or regulation of
the department, any order of the department, or any term or
condition of any permit, shall constitute a public nuisance.” 35
P.S. § 6018.601. Among these rules and regulations is an
obligation to implement a plan “to minimize and control public
nuisances from odors,” 25 Pa. Code § 273.218(b)(1), and to be
governed by a plan providing for “the orderly extension of
municipal waste management systems . . . in a manner which
will not . . . constitute a public nuisance.” 35 P.S.
§ 6018.201(e)(1).

        The SWMA “does not provide for a private cause of
action” and “private persons may only intervene under the
SWMA in actions brought by [PADEP].” Centolanza v.
Lehigh Valley Dairies, Inc., 

635 A.2d 143

, 149 (Pa. Super. Ct.
1993), aff’d, 

658 A.2d 336

(Pa. 1995). Notwithstanding this
limitation, the SWMA includes an express carve out or savings
clause preserving private “rights of action or remedies”
existing “under the common law or decisional law or in
equity.” 35 P.S. § 6018.607.

                     B. Plaintiffs’ Action

       The Baptistes are homeowners residing in
Freemansburg, Pennsylvania, which is located on the west
bank of the Lehigh River. East of the river is Lower Saucon
Township, where Bethlehem owns and operates a 224-acre
solid waste disposal facility and landfill. The landfill is
permitted to accept up to 1,375 tons of waste daily. As the




                               6
waste decomposes, it releases “odorous landfill gas, leachate
and other byproducts.”2 JA29 (Compl. ¶ 8).

       In 2018, the Baptistes sued Bethlehem for public
nuisance, private nuisance, and negligence. The plaintiffs
asserted these claims on behalf of a putative class of other
homeowner-occupants and renters in about 8,400 households
within a 2.5-mile radius of the landfill, claiming property
damages in excess of $5 million.

       According to the complaint, Bethlehem is not operating
the landfill in accordance with the SWMA and industry
standards, causing nearby neighborhoods, homes and yards to
be “physically invaded by noxious odors, pollutants and air
contaminants[.]” JA29 (Compl. ¶ 12); see JA32 (Compl. ¶ 27)
(alleging that Bethlehem “negligently failed to construct,
maintain and/or operate the landfill, and caused the invasion of
Plaintiffs’ property by noxious odors, air contaminants, and
other airborne pollutants”).

        Over the years, residents have complained to PADEP
and Lower Saucon Township about “odorous emissions” from
the landfill. JA30 (Compl. ¶ 13). Bethlehem has received
numerous fines and citations from PADEP and the township
for its failure to properly manage and maintain the landfill,
such as the “failure to implement a gas control and monitoring
plan to effectively monitor gas collection for nuisance
potential,” the failure to place covers atop the trash piles to
“prevent vectors, odors, blowing litter, and other nuisances”


       2
         Leachate is water that has been contaminated by
soluble and often harmful residues or chemicals from the solid
waste through which it passes.




                               7
from escaping the landfill, and the “failure to implement the
Nuisance Minimization and Control Plan to minimize and
control conditions that are harmful to the environment or
public health, or which create safety hazards, odors, dust,
noise, unsightliness, and other public nuisances.” JA30-31
(Compl. ¶ 16 (d)-(f)).

        Some residents have contacted counsel to document
their experiences with the landfill, describing “the sickening
odors as obnoxious, foul, and nauseating.” JA32 (Compl.
¶ 20). Residents complained that the odors prevent them from
using and enjoying their homes and private land. For instance,
residents are unable to use their swimming pools, spend time
on their porches, host guests (due to embarrassment), or play
in their yards with their children or pets. “At times, the stench
becomes so pungent that it permeates the walls of [their]
homes,” forcing them to keep “all windows and doors sealed
shut and virtually render[ing] them entrapped in their own
homes.” JA32 (Compl. ¶ 22).

       On Bethlehem’s motion, the District Court dismissed
the complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). Having dismissed all the
claims, the court also dismissed the Baptistes’ request for
punitive and injunctive relief. The Baptistes timely appealed.

                  C. Intervention by Amici

       We granted leave to the Public Interest Law Center and
Philly Thrive to appear as amici in support of the Baptistes.
These two non-profit organizations sought to shine light on the
“environmental justice” implications of the District Court
decision for “communities disproportionately impacted by




                               8
pollution—that is, low-income communities and communities
of color.”3 Public Interest Law Center Amicus Br. 2.

       The Chamber of Commerce of the United States of
America, the Pennsylvania Chamber of Business & Industry,
the Pennsylvania Farm Bureau, and the National Waste &
Recycling Association appeared as amici in support of
Bethlehem. In their view, the District Court decision preserves
the business community’s ability to “coordinate” directly with
regulatory agencies, rather than defend numerous private
lawsuits, and redress large-scale environmental harms without
reducing “investment and quality of goods and services.”
Chamber of Commerce Amicus Br. 5, 24-31; see National
Waste & Recycling Association Amicus Br. 1,16-19.

                  STANDARD OF REVIEW

       We exercise plenary review over the dismissal of a
complaint under Federal Rule 12(b)(6). Our role is to
“determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v.
County of Allegheny, 

515 F.3d 224

, 233 (3d Cir. 2008)
(internal quotation marks omitted). A complaint’s “well-
pleaded allegations” must be accepted as true and must be
viewed “in the light most favorable to the plaintiffs.”


       3
         “Environmental justice embodies the principles that
communities and populations should not be disproportionally
exposed to adverse environmental impacts.”            PADEP,
Environmental Justice,
https://www.dep.pa.gov/PublicParticipation/OfficeofEnviron
mentalJustice/Pages/default.aspx (last seen July 13, 2020).




                               9
McTernan v. City of York, 

577 F.3d 521

, 526 (3d Cir. 2009)
(citation omitted).

                         DISCUSSION

        The Baptistes assert that they have sufficiently pleaded
the necessary elements for each of their causes of action: public
nuisance, private nuisance, and negligence. We will address
the nuisance claims together, because the analysis overlaps in
significant respects, before turning to negligence.



       Common-law nuisance is a notoriously perplexing and
unruly doctrine, seeming to defy all efforts to draw bright lines
around it. See Int’l Paper Co. v. Ouellette, 

479 U.S. 481

, 496
n.17 (1987) (“There is perhaps no more impenetrable jungle in
the entire law than that which surrounds the word ‘nuisance.’”
(quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
PROSSER AND KEETON ON LAW OF TORTS 616 (5th ed. 1984)).

       The father of the leading treatise on torts, William
Prosser, considered the law of nuisance a “legal garbage can”
full of vagueness and uncertainty. William L. Prosser,
Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942).
Courts have similarly struggled to find their footing on this
legal quagmire. As Justice Blackmun observed, “[O]ne
searches in vain, I think, for anything resembling a principle in
the common law of nuisance.” Lucas v. S.C. Coastal Council,

505 U.S. 1003

, 1055 (1992) (dissenting).

      The Baptistes contend that the District Court
misapprehended foundational nuisance principles, and as a




                               10
result, imposed restrictions on their public and private nuisance
claims that do not exist under Pennsylvania common law.

        Bethlehem disagrees. It asserts that the District Court
got it right, albeit for a slightly different reason. Bethlehem
argues that the Baptistes have not alleged an ordinary public or
private nuisance, but rather a so-called “mass nuisance”—a
large-scale industrial nuisance that is too large and widespread
to be actionable by private persons. Appellee’s Br. 28.
According to Bethlehem, the state holds the exclusive power
to remedy these sorts of nuisances.

        To clear out some of the debris from this cluttered area
of the law, we begin with the basics. Consistent with the
Restatement (Second) of Torts, Pennsylvania law recognizes
two types of nuisances: (i) public nuisance and (ii) private
nuisance. Youst v. Keck’s Food Serv., Inc., 

94 A.3d 1057

,
1071-72 (Pa. Super. Ct. 2014) (citing Pa. Soc’y for the
Prevention of Cruelty to Animals v. Bravo Enters., Inc., 

237 A.2d 342

, 348 (Pa. 1968) [“PSPCA”]); see RESTATEMENT
(SECOND) OF TORTS § 821A (1979); 2 SUMM. PA. JUR. 2D
TORTS § 21:4 (2d ed.); see also Prosser, Nuisance Without
Fault, supra at 411 (explaining that “[p]roperly used,” the term
“‘nuisance,’ refers to two, and only two, types of invasions,”
public nuisance and private nuisance, and noting that “[t]here
is, properly, no other kind of nuisance”). Thus, the Baptistes’
nuisance claims must rise or fall on these two theories.

                      1. Public Nuisance

        A public nuisance is “an unreasonable interference with
a right common to the general public,” such as the right to clean
public water and fresh air in public spaces. Philadelphia Elec.
Co. v. Hercules, Inc., 

762 F.2d 303

, 315 (3d Cir. 1985)




                               11
(quoting RESTATEMENT (SECOND) OF TORTS § 821B(1));
Machipongo Land & Coal Co. v. Pennsylvania, 

799 A.2d 751

,
773 (Pa. 2002). Because these rights are held in common by
the public at large and no one owns them to the exclusion of
others, the remedy for their infringement ordinarily lies “in the
hands of the state.” Philadelphia Elec. 

Co., 762 F.2d at 315

(quoting William L. Prosser, Private Action for Public
Nuisance, 52 VA. L. REV. 997, 999 (1966)).

        There is no dispute that the Baptistes have alleged the
existence of a public nuisance based on Bethlehem’s alleged
failure to operate its facility in accordance with the SWMA and
the resulting discomfort and inconvenience caused by the
offensive odors emanating from the landfill into their
neighborhood. See 

Machipongo, 799 A.2d at 773

(stating that
an unreasonable interference with a public right may occur
when “conduct involves a significant interference with . . . the
public comfort or the public convenience,” or when “conduct
is proscribed by a statute, ordinance or administrative
regulation” (quoting RESTATEMENT (SECOND) OF TORTS
§ 821B)). The question is whether the Baptistes have properly
pleaded a private claim for this public nuisance. The answer is
yes.

       When a public nuisance interferes with an individual’s
personal rights, such as the right to use and enjoy “private
land,” the aggrieved person has a private cause of action to
remedy the infringement of his personal rights. Philadelphia
Elec. 

Co., 762 F.2d at 315

(quoting Prosser, Private 

Action, supra, at 999

); see 2 SUMM. PA. JUR. § 21:5 com. (“The harm
suffered by the landowner is a particular harm differing in kind
from that suffered by the general public, so the landowner can
recover for the public nuisance.”). To be actionable, the
infringement of the personal rights must result in “significant




                               12
harm,” that is, “harm of importance involving more than slight
inconvenience.” Harford Penn-Cann Serv., Inc. v. Zymblosky,

549 A.2d 208

, 209 (Pa. Super. Ct. 1988) (quoting
RESTATEMENT (SECOND) OF TORTS § 821F com. c).

       Stated differently, to sustain a private claim on a public
nuisance theory, “a plaintiff must have suffered a harm of
greater magnitude and of a different kind than that which the
general public suffered.” Allegheny Gen. Hosp. v. Philip
Morris, Inc., 

228 F.3d 429

, 446 (3d Cir. 2000); see 

PSPCA, 237 A.2d at 348

(“[A] public nuisance may be enjoined at the
behest of a private citizen or group of citizens, if . . . their
property or civil rights[] are specifically injured by the public
nuisance over and above the injury suffered by the public
generally.”).

       In Philadelphia Electric Co., we rejected a utility
company’s attempt to recover costs related to cleaning up
pollution in the Delaware River. Although these pecuniary
damages were different in kind from the harm suffered by the
general public, there was no indication that the company had
been “directly harmed in any way by the pollution in those

waters.” 762 F.2d at 316

. But we observed that the company
may have been able to assert a private claim if, “as a riparian
landowner,” it “had suffered damage to its land or its
operations as a result of the pollution of the Delaware.”

Id. (emphasis added);

cf. Bell v. Cheswick Generating Station, 

734 F.3d 188

, 189, 192, 196-97 (3d Cir. 2013) (holding that the
Clean Air Act did not preempt nuisance claims brought by
Pennsylvania homeowners and residents for interference with
use and enjoyment of their private land caused by the
outmigration of noxious odors and particulates from a nearby
coal-fired electrical plant).




                               13
        Here, the Baptistes seek to vindicate their right to use
and enjoy their home and obtain the full value of their
property—personal rights that are qualitatively different (“of a
different kind”) than the general, non-possessory right to clean
air held in common with the community at large. Philadelphia
Elec. 

Co., 762 F.2d at 316

. The alleged harm caused by the
infringement of these personal rights is also quantifiably larger
(“of greater magnitude”) than the harm caused by the
interference with the general right to clean air. Allegheny Gen.

Hosp., 228 F.3d at 446

.

       While everyone in the community—including visitors,
commuters and residents alike—may suffer from the
discomfort of having to breathe polluted air in public spaces,
the Baptistes have identified cumulative harms that are unique
to them and their fellow residents as homeowner-occupants or
renters, such as the inability to use and enjoy their swimming
pools, porches, and yards. The complaint specifically alleges
that the presence of these odors is “especially injurious” to
class members “as compared with the public at large, given the
impacts to their homes.” JA32 (Compl. ¶ 28). These injuries
are above and beyond any injury to the public, because they
involve private property damages that the public at large has
not endured. In short, the Baptistes sufficiently alleged a
“particular damage” to sustain a private claim for public
nuisance. Philadelphia Elec. 

Co., 762 F.2d at 316

.

       The District Court’s contrary conclusion is not
supported by Pennsylvania law. The court reasoned that,
because the presence of odors affected thousands of
households in the same way, none of the residents could claim
a “special harm.” JA9. The court relied primarily on a district
court decision, quoting an isolated statement: “[W]here there
are a large number of plaintiffs, the harm those plaintiffs




                               14
suffered is not special.” In re One Meridian Plaza Fire Litig.,

820 F. Supp. 1460

, 1481 (E.D. Pa. 1993), vacated in part, No.
CIV. A. 91-2171, 

1993 WL 224167

(E.D. Pa. June 14, 1993),
and rev’d on other grounds sub nom. Fed. Ins. Co. v. Richard
I. Rubin & Co., 

12 F.3d 1270

(3d Cir. 1993)).

       There were two missteps in the District Court’s
analysis.

        First, the District Court incorrectly conflated the
putative class with the general public. These two groups are
not conterminous. The Baptistes have asserted their claims
specifically on behalf of a class of homeowner-occupants and
renters, not the community at large. Rather than compare the
injuries suffered by the Baptistes with the same injuries
suffered by similarly situated class members, the District Court
should have compared the injuries suffered by putative class
members as homeowner-occupants and renters with the harm
shared by all community members including nonresidents such
as visitors and commuters. As explained above, that
comparison reveals that the Baptistes have alleged additional
invasions of their private property rights resulting from the
interference with the common right to clean air.

        Second, the District Court’s reliance on One Meridian
was misplaced. There, a large fire engulfed a building in
downtown Philadelphia, causing massive street closures.
Local businesses brought a class action seeking compensation
for lost profits and loss of access to their business properties
under a public nuisance theory, among others. One 

Meridian, 820 F. Supp. at 1464

, 1471. While the One Meridian court
speculated that allowing too many plaintiffs into the class
might “generalize the harm,” it did not impose a numerical
limitation on the size of the class.

Id. at 1482.

Rather, it




                              15
defined the class by the nature and degree of the harm suffered,
that is, “lost profits” that were “reasonabl[y] certain[]” or “lack
of access” that was “substantial.” Id.; see 2 SUMM. PA. JUR.
§ 21:5 illus. & n.4 (citing One Meridian for the proposition that
“the only parties who may have suffered peculiar harm
required for a public nuisance claim . . . were those businesses
who could show with reasonable certainty that they lost profits
due to the closure of the streets and who suffered substantial
lack of access”).

       It also bears mentioning that One Meridian did not rely
on Pennsylvania authority for the suggestion that real property
damages (such as those alleged here) become “generalized” or
“not special” if a large number of plaintiffs suffer the same
injury.4 To our knowledge, no Pennsylvania court has so held,


       4
         We note that the One Meridian court analyzed lack of
access and lost profits together, as if they were
indistinguishable. They are not. Lack of access is an invasion
of a “property right in the land,” RESTATEMENT § 821C com.
f, while lost profits are a form of pecuniary or economic losses
that are not necessarily connected to invasions of real property,

id. § 821C

com. h. That difference matters. While we have
found no Pennsylvania authority for limiting the number of
plaintiffs that can recover for interference with real property
rights on a nuisance theory, there is some authority for the
proposition that businesses may lose their ability to recover lost
profits on a public nuisance theory when all or the great
majority of businesses in a community are similarly affected or
when their economic losses are untethered from any real
property damages. See Duquesne Light Co. v. Pennsylvania
Am. Water Co., 

850 A.2d 701

, 702, 707 (Pa. Super. Ct. 2004);
RESTATEMENT (SECOND) OF TORTS § 821C com. h. We need




                                16
either before or after One Meridian. We believe that the
District Court erred in taking that step first.

       In brief, the Baptistes have properly stated a private
claim for public nuisance.

                     2. Private Nuisance

        The Baptistes have also stated a private nuisance claim.
A private nuisance exists when a person’s conduct invades
“another’s interest in the private use and enjoyment of land,”
and that invasion is either intentional and unreasonable or
unintentional but negligent. 

Youst, 94 A.3d at 1072

(citing
RESTATEMENT (SECOND) OF TORTS § 822). There is no dispute
that the Baptistes have sufficiently pleaded these elements.

        Still, the District Court dismissed the private nuisance
claim, adopting a similar logic as it did for public nuisance.
The court reasoned that, because the outmigration of odors was
a public nuisance insofar as it affected the “whole community”
rather than only “some particular person,” it could not also be
a private nuisance. JA13 (quoting Phillips v. Donaldson, 

112 A. 236

, 246 (Pa. 1920)). That was legal error.

       Although public and private nuisance are distinct causes
of action, they are not mutually exclusive. Again, the critical
difference between these two theories of liability is not the
number of persons harmed but the nature of the right affected:

not address that distinction any further, because it is not
relevant here. The Baptistes are not seeking economic losses,
only real property damages, i.e., loss of real property value and
interference with the use and enjoyment of their homes and
private land.




                               17
a public nuisance requires interference with common or public
rights, while a private nuisance requires only interference with
personal or private rights.5 See Philadelphia Elec. 

Co., 762 F.2d at 315

; 

Youst, 94 A.3d at 1071

; see 58 AM. JUR. 2D
NUISANCES §§ 25, 32 (2020).

        When a private or public nuisance is so widespread that
it affects both public and private rights, it may be actionable as
either public or private “or both public and private.” 

Youst, 94 A.3d at 1071

(citing 

PSPCA, 237 A.2d at 348

). There may be
some overlap between these two causes of action, for instance
when, as here, the alleged interference with private land
supplies the basis for both the private nuisance claim and the
particular harm required to sustain a private claim for public
nuisance. See, e.g., Umphred v. VP Auto Sales & Salvage, Inc.,
No. 1372 MDA 2014, 

2015 WL 6965725

, at *12 (Pa. Super.
Ct. June 24, 2015) (affirming the lower court’s conclusion that
“noise pollution” from the operation of a scrap metal recycling
facility was actionable by nearby residents both as a public and
private nuisance, because it interfered with both public and
private rights);6 see also RESTATEMENT (SECOND) OF TORTS
§§ 821C com. e, 821B com. h.


       5
          Phillips is not to the contrary. It is clear from the
context of that case that the distinction the court draws between
public and private nuisance focuses on differentiating between
whether the nuisance affects the rights of the “general public”
or the rights of a “private 

individual.” 112 A. at 238

.
       6
        We cite Umphred for illustrative purposes only, as we
are cognizant that the Pennsylvania Superior Court has limited
the precedential weight of any “unpublished memorandum
decision filed prior to May 2, 2019.” 210 Pa. Code § 65.37.




                               18
        The District Court further held that private nuisance
claims are only available to resolve conflicts between
proximate or adjoining neighbors. The court found that the
Baptistes’ home, which is located about 1.6 miles from the
landfill, was too far to qualify as a “neighboring property.”
A13. That, too, was legal error.

        We have found no support under Pennsylvania law for
rejecting a private nuisance claim on the ground that the
property affected was too far from the source of the alleged
nuisance. Bethlehem points to a decision from more than a
century ago in which the Pennsylvania Supreme Court noted
“the proximity” of the property to the source of the nuisance,
Gavigan v. Atl. Ref. Co., 

40 A. 834

, 835 (Pa. 1898), but that
case did not hold that a more distant property would not have
been able to bring the same claim. Nor have we seen any case
citing Gavigan for that proposition in the 120 years since it was
decided.

       Conversely, the last reported case to cite Gavigan
recognized the existence of a private nuisance even though the
source of the alleged nuisance—manufacturing plants emitting
“corrosive gases, smoke, lead particles and lead oxides”—was
located about “one and one-half miles” from the plaintiffs’
property. Noerr v. Lewistown Smelting & Ref., Inc., 60 Pa. D.
& C.2d 406, 408, 414 (Pa. Com. Pl. 1973). More recently, in
a nuisance action brought against another landfill, a
Pennsylvania court rejected this supposed “neighboring
requirement” as meritless. Leety v. Keystone Sanitary Landfill,




                               19
No. 2018 CV 1159, slip op. at 6 (Pa. Com. Pl. Jan. 24, 2019)
(internal quotation marks omitted).7

       In sum, because the Baptistes have alleged that their
private property rights are being significantly and
unreasonably infringed by the presence of noxious odors and
air contaminants released by the Bethlehem landfill, they have
stated both a private claim for public nuisance and a private
nuisance claim.

                     3. “Mass Nuisance”

        We conclude our nuisance analysis by addressing
Bethlehem’s “mass nuisance” theory. Bethlehem contends
that when too many people complain of the same particular
harm, they lose the right to bring a private action to remedy
that injury. Bethlehem does not identify a precise number at
which that right is extinguished. It argues that this threshold is
crossed when the nuisance is so widespread that the number of
aggrieved persons becomes “indeterminate” or when it affects


       7
          The other cases cited by the District Court and
Bethlehem are inapposite. They focus on “neighboring or
adjoining” properties for different reasons: (i) nuisance
requires “contemporaneous” or simultaneous uses of land by
the plaintiff and the defendant and (ii) a plaintiff cannot assert
a nuisance claim against a defendant when “the nuisance
property and the affected property are one and the same.”
Rowe v. E.I. Dupont De Nemours & Co., 

262 F.R.D. 451

, 459-
60 (D.N.J. 2009); see also Philadelphia Elec. 

Co., 762 F.2d at 314-15

; Cavanagh v. Electrolux Home Prod, 

904 F. Supp. 2d 426

, 433-34 (E.D. Pa. 2012). Neither of those concerns are
present here.




                               20
an entire neighborhood, as opposed to only a small subset of
its population, regardless of its size.

       In other words, if the Baptistes and only a few other
households were affected by the odors, they would have
cognizable nuisance claims. But because the odors reach the
whole neighborhood (some 20,000 residents by Bethlehem’s
count), none of the residents may bring a private claim to
redress infringements of the same personal rights. Instead,
according to Bethlehem, they must depend entirely on PADEP
or other public officials to remedy the situation on their behalf.

       Bethlehem insists that the Pennsylvania Supreme Court
endorsed this theory more than a century ago in Gavigan and
then again in Edmunds v. Duff, 

124 A. 489

(Pa. 1924), a case
that Bethlehem belatedly cited for the first time at oral
argument. But neither of these cases supports Bethlehem’s
position. Edmunds actually undermines it. There, the court
held that individual residents retained the right in equity to
protect themselves against any “interference with the
enjoyment of private homes” caused by “the operation of a
business or industry tending to render the immediate
community a less desirable place in which to live,” even
though “the resulting injury . . . necessarily affects practically
all persons who happen to be living in the immediate
neighborhood[.]” 

Edmunds, 124 A. at 492

. The Edmunds
court alluded to “numerous cases” illustrating this point and
noted that residents that were “especially injured” in those
cases were “invariably” entitled to relief on an individual basis,
“regardless of the fact that the acts complained of may also
have amounted to a public nuisance and liable to be dealt with
as such.”

Id. 21 To

be sure, neither party has submitted a decision of the
Pennsylvania Supreme Court directly addressing the question
of whether there is a limit on the number of plaintiffs that can
recover private property damages on a nuisance theory.8 “In
the absence of a controlling decision by the Pennsylvania
Supreme Court, a federal court applying that state’s substantive
law must predict how Pennsylvania’s highest court would
decide this case. In predicting how the highest court of the
state would resolve the issue, [we] must consider ‘relevant
state precedents, analogous decisions, considered dicta,
scholarly works, and any other reliable data tending
convincingly to show how the highest court in the state would
decide the issue at hand.’” Berrier v. Simplicity Mfg., Inc., 

563 F.3d 38

, 45-46 (3d Cir. 2009) (internal citations omitted)
(footnotes omitted) (alteration supplied).

        We are not convinced that Pennsylvania’s highest court
would adopt Bethlehem’s novel position in this case. In
addition to the Pennsylvania Supreme Court cases and other
authorities establishing the controlling legal principles
referenced in our nuisance analysis above, there are several
examples of state or federal courts allowing private nuisance
actions by large numbers of homeowners and residents for
widespread industrial nuisances in Pennsylvania, including an
almost identical class action recently filed against another
landfill in the Court of Common Pleas of Lackawanna County.
See Leety, No. 2018 CV 1159, slip op. at 1; see also, e.g., Diehl
v. CSX Transp., Inc., 

349 F. Supp. 3d 487

, 494-95, 507-08
(W.D. Pa. 2018) (denying a motion to dismiss a private
nuisance claim brought by a putative class of “approximately

       8
          The parties agree that this question does not warrant
certification to the Pennsylvania Supreme Court.




                               22
1,000” residents); Maroz v. Arcelormittal Monessen LLC, No.
15-cv-0770, 

2015 WL 6070172

, at *2, *4 (W.D. Pa. Oct. 15,
2015) (denying a motion to dismiss private nuisance claims
against a metal processing plant emitting “noxious odors and
air particulates,” brought by an unspecified number of
“surrounding residents”).

       Bethlehem cites other Pennsylvania cases that it claims
support its position. Yet none of those cases imposed a limit
on the number of plaintiffs who can recover for the
unwarranted invasions of their private property rights. For
instance, Bethlehem cites at length Brunner v. Schaffer, 

1 Pa. D

. 646 (Pa. Com. Pl. 1892), for the proposition that “widely-
dispersed airborne emissions across an entire neighborhood is
a claim for public nuisance without ‘special injury,’ and is
redressable solely by public authorities like PADEP.”
Appellee’s Br. 23. Yet Brunner says no such thing.

        The Brunner court itself acknowledged that the right of
action for public or private nuisance “depends upon the
character of the injury solely,” not “the number of people who
suffer by it.” 

1 Pa. D

. at 648. True, the court rejected a private
nuisance claim for foul odors that were “entering into the open
windows of the plaintiff’s house,” but it did so because the
plaintiff had not specifically alleged a “special injury” to
property or persons distinct from the general discomfort
suffered “by all the others in that locality.”

Id. at 649.

There
was no indication that the plaintiff had complained of any
interference with the use and enjoyment of her home, nor of
any “property destroyed or depreciated.”

Id. Nor do

we see any indication that cases from other
jurisdictions —to the extent that they support Bethlehem’s
position—have gained any traction in Pennsylvania courts. Cf.




                               23
58 AM. JUR. 2D NUISANCES § 37 (noting that some courts have
stated that a private nuisance is limited to a “relatively few
persons” or a “determinate number of persons,” but citing only
a handful of out-of-state cases).

       All that Bethlehem is left with are policy arguments.
Bethlehem believes that leaving the remediation of large-scale
industrial nuisances to the exclusive discretion of
democratically accountable public officers is a sensible rule,
because subjecting public utilities such as landfills to liability
for private damages at the behest of thousands or millions of
individuals would pose an “existential threat” to critical
services that benefit the whole community. Oral Arg. Audio
24:55-25:00, 29:10-15. Their supporting amici also warn
against allowing “piecemeal” litigation “to attack landfill
operations” that are already subject to “intense regulatory
scrutiny,” because it could undermine the “consistent
application” of the regulatory regime. National Waste &
Recycling Association Amicus Br. 17, 19-20; see Chamber of
Commerce Amicus Br. 28-29.

        The Baptistes beg to differ. They counter that the right
to bring a private cause of action is a longstanding and
important legal tool for protecting private property rights
against the incursion of industrial nuisances. They note that,
by including a savings clause in the SWMA, the Pennsylvania
legislature expressly preserved the right to bring private
actions under the common law to redress infringements of
personal rights in addition to any other remedies that may be
available through public action under that statute. See 35 P.S.
§ 6018.607 (“It is hereby declared to be the purposes of [the
SWMA] to provide additional and cumulative remedies[.]”
(emphasis added)); Lutz v. Chromatex, Inc., 

718 F. Supp. 413

,
428 (M.D. Pa. 1989) (“[T]he legislature obviously had the




                               24
rights of private citizens in mind when it drafted the [SWMA]
but elected to protect those rights by way of existing common
law remedies, such as actions for negligence and nuisance.”).

       Their supporting amici emphasize that this private right
is of greater importance to historically underrepresented
communities whose interests are not always fully addressed by
public agencies or through the political process. For instance,
recent studies have shown that environmental pollution,
including from landfills, has a disparate impact on racial-ethnic
minorities and low-income communities.                See, e.g.,
Christopher W. Tessum et al., Inequity in Consumption of
Goods and Services Adds to Racial-Ethnic Disparities in Air
Pollution Exposure, 116 PROC. NAT’L ACAD. SCI. 6001, 6001
(2019) (finding that “non-Hispanic whites experience . . .
∼17% less air pollution exposure than is caused by their
consumption,” while “Blacks and Hispanics on average bear a
‘pollution burden’ of 56% and 63% excess exposure,
respectively, relative to the exposure caused by their
consumption”); Kathy Seward Northern, Battery and Beyond:
A Tort Law Response to Environmental Racism, 21 WM. &
MARY ENVTL. L. & POL’Y REV. 485, 498-505 (1997)
(reviewing empirical research indicating that landfills and
other waste disposal facilities are significantly more likely to
be built in minority and low-income communities).

       Yet environmental laws remain underenforced in those
communities. See, e.g., R. Shea Diaz, Getting to the Root of
Environmental Injustice: Evaluating Claims, Causes, and
Solutions, 29 GEO. ENVTL. L. REV. 767, 779 (2017) (reviewing
empirical     research  suggesting     that   environmental




                               25
“enforcement is less vigilant in minority and low-income
communities”).9

       Notwithstanding these important policy concerns, we
remain tethered to what Pennsylvania law requires. We have
not been presented with any Pennsylvania authority for the
proposition that an individual’s right to recover private
property damages on a nuisance theory turns on the size of the
nuisance or the number of persons harmed, as opposed to the
nature of the rights affected or the degree of the harm suffered.
And we see no reason to depart from longstanding principles
that allow individuals to recover private property damages
caused by widespread nuisances, especially where, as here, the
number of plaintiffs is not so large as to be “indeterminate,” as

       9
          PADEP has also recognized that “minority and low-
income Pennsylvanians have been forced to bear a
disproportionate       share    of    adverse     environmental
impacts.” PADEP, Environmental Justice,
https://www.dep.pa.gov/PublicParticipation/OfficeofEnviron
mentalJustice/Pages/default.aspx (last seen July 13, 2020). In
fact, PADEP has identified Freemansburg, where the Baptistes
reside, as an “environmental justice area,” meaning an area
“where 20 percent or more individuals live in poverty, and/or
30 percent or more of the population is minority.”
See PADEP, PA Environmental Justice Areas,
https://www.dep.pa.gov/PublicParticipation/OfficeofEnviron
mentalJustice/Pages/PA-Environmental-Justice-
Areas.aspx (last seen July 13, 2020);
PADEP, Environmental Justice Areas of Pennsylvania,
http://files.dep.state.pa.us/PublicParticipation/Office%20of%
20Environmental%20Advocacy/EnvAdvocacyPortalFiles/En
vironmental_Justice_Areas_PA.pdf (last seen July 13, 2020).




                               26
Bethlehem posits, but rather is defined and limited to
homeowner-occupants and renters within a 2.5-mile radius
from the landfill.

        To adopt Bethlehem’s novel position would produce the
anomalous result of penalizing small polluters while
exempting larger polluters from the same liability. We decline
to take that step without a clear directive from the Pennsylvania
Supreme Court.



       We now turn to the negligence claim. In Pennsylvania,
a plaintiff complaining of negligence must establish that (i) the
defendant has a legal duty to conform to a certain standard of
care to prevent unreasonable risks to the plaintiff, (ii) the
defendant’s conduct breached that duty, (iii) the breach caused
an injury to the plaintiff, and (iv) the injury resulted in actual
losses or damages. Nw. Mut. Life Ins. Co. v. Babayan, 

430 F.3d 121

, 139 (3d Cir. 2005); R.W. v. Manzek, 

888 A.2d 740

,
746 (Pa. 2005).

       The parties’ arguments on negligence have evolved
throughout the litigation. In the District Court, Bethlehem
sought dismissal of the negligence claim on the ground that the
Baptistes had failed to identify a legal duty to prevent the
outmigration of odors or other nuisance conditions.

       In response, the Baptistes initially argued that the
relevant duty was found in Bethlehem’s obligation to comply
with certain requirements under the SWMA and that any
violation of those statutory provisions constituted a breach of
that duty. At the hearing before the District Court, the
Baptistes refined their position. Acknowledging that the




                               27
SWMA did not create a legal duty owed to private individuals,
the Baptistes invoked a common-law duty of care arising from
Bethlehem’s “affirmative act” of operating a landfill. JA74;
see JA38 (Compl. ¶ 63) (alleging that Bethlehem breached its
“duty to exercise ordinary care and diligence when it
improperly constructed, maintained and/or operated the
landfill”).

       The District Court ignored this common-law argument,
treated the Baptistes’ statute-based argument as a claim of
negligence per se, and held that negligence per se was not
actionable under the SWMA.

       On appeal, the Baptistes assert that the District Court
erred not because it rejected a negligence per se claim but
because it did not recognize the existence of a common-law
duty. According to the Baptistes, “Pennsylvania courts have
long recognized” that when a person undertakes “affirmative,
risk-causing conduct,” such as operating a landfill, that person
assumes a common-law duty to protect others “against an
unreasonable risk of harm arising out of that act.” Appellants’
Br. 28-29, 31 (internal quotation marks omitted).

       Bethlehem modified its argument accordingly. On
appeal, Bethlehem concedes that it owes the plaintiffs a
common-law duty to undertake its landfilling operations with
reasonable care but disputes the content of that duty.
According to Bethlehem, “the duty is to protect others against
an unreasonable risk of harm,” and it argues that, “in this
context, ‘harm’ means physical harm, not mere nuisance” such
as odors.10 Appellee’s Br. 34-35. Bethlehem contends for the

       10
         Bethlehem cites Gilbert v. Synagro Cent., LLC, 

90 A.3d 37

(Pa. Super. Ct. 2014), and Horne v. Haladay, 

728 A.2d 28

first time that, because the Baptistes have not pleaded any
physical injury to persons or property, they have failed to state
an independent claim for negligence.

       That argument is drastically different from the issue
presented to and addressed by the District Court. As the parties
stand before us, there is no longer any dispute that Bethlehem
has a common-law duty to operate the landfill in a manner that
avoids any unreasonable risk of harm to the plaintiffs.11 On

954 (Pa. Super. Ct. 1999), to suggest that the Baptistes cannot
rely on the same nuisance conditions to state a separate
negligence claim. Not so. The key difference between Gilbert
and Horne on the one hand and this case on the other is the
allegation of wrongful conduct (i.e., breach of a legal duty),
which was not at issue in Gilbert or Horne. See 

Gilbert, 90 A.3d at 51

(“As in Horne, the operative facts here establish that
the Residents have asserted nuisance claims, not negligence
claims—namely claims based upon a use of property that ‘is
not wrongful in itself, but only in the consequences which may
flow from it.’” (citing Kramer v. Pittsburgh Coal Co., 

19 A.2d 362

, 363 (Pa. 1941) (emphasis added)).
       11
          Indeed, in Pennsylvania, a duty of reasonable care
attaches to persons undertaking affirmative, risk-causing acts.
Dittman v. UPMC, 

196 A.3d 1036

, 1046-47 (Pa. 2018). That
includes the operation of industrial sites. See, e.g., Leety, No.
2018-cv-1159, slip op. at *7 (holding that plaintiffs had
sufficiently alleged that a landfill operator owed surrounding
property owners a “duty to exercise ordinary care and
diligence” based on “[i]ndustry standards of care”); 

Noerr, 60 Pa. D. & C.2d at 453

(finding that the failure to install and
properly operate adequate pollution controls was negligent).
Courts have also looked to the SWMA or similar statutes to




                               29
that basis alone, we will reverse the District Court’s dismissal
of the negligence claim.

        Still, the question remains whether the Baptistes have
sufficiently pleaded a cognizable injury to state an independent
negligence claim. See LaForm v. Bethlehem Twp., 

499 A.2d 1373

, 1384 (Pa. Super. Ct. 1985); RESTATEMENT (SECOND) OF
TORTS §§ 371, 497. The Baptistes believe they have
sufficiently pleaded physical property damages insofar as they
alleged that “noxious odors, pollutants and air contaminants”
have “physically” invaded their property, JA29 (Compl. ¶ 12),
constituting a “hazard to health, safety, or property.” JA30-31
(Compl. ¶ 16). At oral argument, the Baptistes noted that they
also alleged the outmigration of “landfill gas,” which they
claim is composed primarily of “hydrogen sulfide,” an odorous
chemical that can be hazardous to human health after repeated
exposure. Oral Arg. Audio 41:35-55.

        We will not venture into the weeds of this issue in the
first instance. See Lloyd v. HOVENSA, LLC, 

369 F.3d 263

,
272-73 (3d Cir. 2004) (“Our Circuit adheres to a well
established principle that it is inappropriate for an appellate
court to consider a contention raised on appeal that was not
initially presented to the district court.” (internal quotation
marks omitted)). However, because the parties have not
argued forfeiture or waiver of these new arguments, we will
leave it to the District Court to determine whether to consider



identify the relevant standard of care and considered “evidence
of the violation of the SWMA as evidence of negligence.”
Hartle v. FirstEnergy Generation Corp., No. CIV.A. 08-1019,

2014 WL 1117930

, at *6 (W.D. Pa. Mar. 20, 2014).




                              30
the question of physical injury on remand either before or at
the summary judgment stage.12

                        CONCLUSION

       For these reasons, we will reverse the District Court
decision and remand for further proceedings consistent with
this opinion.




       12
          Conceptually, it is not difficult to conceive how the
presence of hazardous particulates in the air could constitute
physical property damage if these pollutants infiltrate physical
structures, as is the case when hazardous chemicals seep into
private wells through contamination in groundwater. See
Ayers v. Jackson Twp., 

525 A.2d 287

, 294 (N.J. 1987); see also
Gates v. Rohm & Haas Co., No. CIV.A. 06-1743, 

2008 WL 2977867

, at *3 (E.D. Pa. July 31, 2008) (“[T]he physical
presence of vinyl chloride [a hazardous substance] in the air,
even if undetectable, constitutes a physical injury to the
property for purposes of common law property damage
claims.”). Drawing all reasonable inferences in favor of the
Baptistes, as required at the pleadings stage, the allegations in
the complaint—namely that “landfill gas” and other hazardous
contaminants have physically invaded the plaintiffs’ property
and “permeate[d] the walls”—may be enough to satisfy that
requirement.




                               31

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